BANGALORE URBAN DISTRICT, NO.8, SAHAKARA BHAVAN, CUNNINGHAM ROAD, BANGALORE – 560 052           

C.C.No.1894/2012

DATED THIS THE 3^rd OCTOBER 2013

PRESENT

SRI.J.N.HAVANUR, PRESIDENT

SRI.H.M.SHIVALINGAPPA, MEMBER

Complainant: -   

                                                Himanshu Gupta,

                                                HUAWEI TECHNOLOGIES,

                                                Prestige Shantiniketan,

                                                Whitefiled road,

                                                Bangalore-66

V/s

Opposite party:-           

                                                The Manager,

                                                CITI bank,

                                                MG Road,

                                                Bangalore

ORDER

SRI.J.N.HAVANUR, PRESIDENT

        This is a complaint filed by the complainant against the OP, praying to pass an order, directing the OP to revoke the concerned fraud transaction and get back his money and grant such other relief.

2. The brief facts of the complaint can be stated as under.

The complainant is in possession of individually owned Citibank credit card no.5546370602462001, since year 2007 onwards till date. On 15-10-2011 at 2.09 hours, the complainant received a notification from Citibank that 95,340.00 RUB was spent on his credit card at M.VIDEO INTERNET – MAG with an authorization code 203963. This transaction was done online by some unknown illegal methods. On immediate basis, the complainant raised a concern with Citibank through mail that, the concerned transaction was not done by him and hence block the transaction. On 16-10-2011 through phone banking facility, the complainant registered his complaint through two separate requests i.e. transaction block request no.14854 and card block request no.87503. Despite all these facts and necessary reactive actions, Citibank India has not credited the above transaction amount and he repeatedly asked to make payment to clear the false dues. On 19-10-2011 the complainant read an article on www.timesoindia.com that an international credit card racket is operating from countries like Russia, Hong Kong, Sri Lanka, Malaysia and Singapore and the same gang had also been involved in a recent fraud transaction on business tycoon, Kumara Mangalam Birla’s credit card as well. This prompted the complainant to register complaint with police and so he registered a formal complaint with DCP, Cyber Crime Cell, Pune police. Since then onwards, Citibank is troubling the complainant with follows ups by sending mails to make the payment with extra service charges.  The complainant has filed the complaint against the OP to revoke the concerned fraud transaction based charges since as a consumer and get back his money. Hence the present complaint is filed.

3. After service of the notice, the OP has appeared through its counsel and filed version, contending interalia as under:

The complaint of the complainant is not maintainable either in law or on facts and it is liable to be dismissed in limine. The present complaint has to be dismissed for the non joinder of necessary parties. The complainant has not made GAZPROMBANK, Moscow as a party to this complaint to whom OP has made the payment. The complainant is holding a credit card bearing no.5546 3706 0246 2001 issued on 13-9-2007, the outstanding amount as on Dec.2011 is Rs.1,63,540=00. On 15-10-2011 an online transaction for a sum of Rs.1,62,989.33 was carried out at Merchant Establishment, M.Video Internet-Magaz Moskva RU. On 15-10-2011 at 2.09 PM the details of the said transaction was sent through a transaction alert email on the same date to the complainant’s email. On 16-10-2011 the complainant through phone banking facility had disputed the online transaction and on the basis of the above dispute and at the request of the complainant, the OP had immediately disabled the said credit card and IPIN to avoid any misuse of the card. The OP initiated investigation on the charge disputed. The investigation revealed that transaction carried out under the secure mode which is only known to the card holder i.e. the complainant. The OP on 29-10-2011 had settled to the acquiring bank, the said debit is reflecting in the Nov.2011 statement of account. The issuance and usage of credit cards are governed by the terms and conditions of the card member agreement which are binding on all credit card holders, including the complainant. At the time of applying for a credit card the card holders are made aware of the terms and conditions of the card member agreement and the same is also sent with the welcome kit. In consonance with the practice the credit card issued to the complainant was accompanied by the welcome kit which contained interalia the card member agreement governing the usage of the credit card. On the basis of the investigation carried out, it was revealed that, the said transaction was authenticated using the internet personal identification number (IPIN) and as per the terms and conditions of the card member agreement governing the usage of the credit cards the transaction done through the use of IPIN which within the exclusive knowledge of the card holder is deemed to be valid transaction. The said disputed transaction has been done by using IPIN which is within the exclusive knowledge of the complainant. The said transaction was carried out only due to negligence of the complainant in not securing or by sharing the secured credential of his said credit card to a third unauthorized party which lead to the alleged misuse of the said credit card. So the OP cannot be held liable for the same and the complainant should not be allowed to take advantage of his own negligence. The OP through its various communications including card member agreement welcome kit, website, statement of account etc. informs its customers including the complainant to safe keep the confidential credentials like TPIN/ IPIN of their credit cards and not to disclose the same. As per credit card industry practice and association guidelines, a credit card issued by a particular bank could be used at Merchant Establishments which is not directly signed up with the credit card issuing bank but however they permit card members belonging to various other card issuing banks who are a member of the association to transact using their cards. For these transactions, the said merchant establishment payments are settled by the GAZPROMBANK Moscow with whom they have a tie up and the acquiring bank in turn does an electronic settlement with the issuing bank. The complete cycle of payment settlement between various entities happens electronically without movement of physical documents. Hence when a valid debit charge is received from the acquiring bank, the issuing bank is obliged to settle payment of the same. The financial authorization of the charges for credit card transactions across the globe is a completely automated process. As per the RBI guidelines, it is mandatory for the credit/debit card to maintain a system of online alerts to inform the cardholders of the transactions of value of Rs.5,000=00 and above. The complainant had registered to the transactional alert facility with the OP and accordingly the OP had duly sent online alert to the complainant of the said disputed transaction through email and SMS dated 15-10-2011. The OP has acted prudently and diligently and have strictly adhered to and followed the banking norms and various guidelines issued by the RBI. The complainant had filed a police complaint with DCP, Cyber Crime Cell, Pune on 24-10-2011 to investigate the online fraud transaction. The OP had replied to the police letter on 11-11-2011 by providing the relevant details of the credit card account. The complainant had lodged a police complaint and the complainant had appraised this forum of the progress and outcome of investigations of the policy and criminal proceedings. It is the duty of the police department to investigate the case and has to file a charge sheet or B-report. The present matter requires detailed evidence and trial to adjudicate upon the authenticity of the disputed transaction and so the same cannot be decided in summary proceedings before this forum. Even a cloned card cannot be misused for online transaction without the card holder sharing the IPIN with the third party. The complainant has not come before this forum with clear hands. The claim of the complainant is under the guise of deficiency in service, but it is a recovery proceeding to avoid paying the transaction amount. The present complaint is filed by the Himanshu Gkuta Huawel Technologies but the credit card is issued to Himanshu Gupta on individual basis. The SOA is the evidence which clearly shows that the card is issued to an individual person. There is no deficiency of service on the part of the OP and there is no cause of action, and it is prayed to dismiss the complaint alongwith exemplary cost. 

4. So from the averments of the complaint of the complainant and objection of the OP, the following points arise for our consideration.

1.                           Whether the complainant proves that, the OP is negligent and there is deficiency of service on the part of the OP, in not settling fraudulent transaction done in Russia?

2.                           If point no.1 is answered in the affirmative, what relief, the complainant is entitled to?

3.                           What order?

5. Our findings on the above points are;

          Point no.1:  In the Negative

Point no.2:  In view of the negative findings on the

point no.1, the complainant is not entitled 

to any relief as prayed in the complaint

          Point no.3:  For the following order

REASONS

          6. So as to prove the case, the complainant has filed his affidavit by way of evidence and produced 11 copies of documents.  On the other hand, one Biju Joe who being the authorized signatory of the OP has filed his affidavit by way of evidence and produced 7 documents as annexure-A to G. We have heard the arguments of both parties and we have gone through the oral and documentary evidence of both sides in between lines.

7. One Himanshu Gupta, who being the complainant has stated in his affidavit that, he was holding Citibank credit card no.5546370602462001 issued on 13-9-2007 which was issued to him on an individual note till it was blocked on 16-10-2011 on his request. The OP has failed to provide the services against his repeated request of not settling the concerned fraud transaction with the vendor/merchant involved. This was despite the fact that, he followed their instructions mentioned in the first notification which state “Dear Citibank customer, 95,340.00 RUB was spent on his credit card on 15-10-2011 at M.Video Internet-Mag. He had in his personal capacity used the credit card exclusively for various personal purposes for almost four years till 15-10-2011. The entire usage of the concerned credit card till date has always been utilized in Indian currency within India only. He has never made any single transaction of Rs.10,000=00 or more on the concerned credit card ever. He has never been taken into confidence by the OP to increase the credit limit to Rs.1,50,000=00. He has not made the concerned transaction in any foreign currency worth of Rs.95,340 Russian Ruble ever. The transaction was made through fraud online means on 15-10-2011 and same was communicated by him to OP through cyber media, immediate he made communication to the OP stating that the communicated transaction is totally false and fraud in nature and he should not be held accountable to pay for the concerned amount. He repeatedly asked the OP not to pay the concerned amount to the concerned merchant/vendor since he is in no way involved in the concerned fraud transaction. He communicated to the OP to start a formal investigation for the concerned transaction and share the report with him. On 19-10-2011 he received an article on www.timesofindia.com that an international credit card racket is operating from countries like Russia, Thailand, Hong Kong, Sri Lanka, Malaysia and Singapore and the same gang has also been involved in a recent fraud transaction on business tycoon, Kumara Mangalam Birla’s Credit Card as well. Hence on a precautionary note was prompted to register a formal complaint with DCP, Cyber Crime Cell, Pune police with serial no.6323 and application no.258/11 with changing dynamics of the current cyber crimes, IPIN based authorizations are no longer seem to be the solution to the answer and so the OP should be made accountable of not employing the best of the breed approach when it comes to online transactions. The adoption of communicating the OTP as a mode of authorization for any online transaction is a clear example of the threats prevailing the internet world, of which he has also become a victim. On the day of the event, OTP based authorization approach was not inducted into operations by the OP. The OP has communicated to him through its customer care representative via voice call that there was three transactions tried by the concerned fraud entity in the foreign currency and only one transaction was successful because of the credit limit. He within the capacity of an individual credit card holder has taken all precautionary and required needful steps while raising his genuine grievance with the OP, but still the OP is involved in generating ways and means to recover the unwarranted and unrecognized amount. So he prays to take a cognizance of condition and decode the future course of action as he is not getting involved in any wrong doing. Hence the present complaint is filed, so the complaint be allowed and pass an order as prayed for.

8. Let us a have look at the relevant documents of the complainant. Document no.1 of the complainant is white sheet wherein we found a copy of PAN card of the complainant bearing no.AKRPG2672F and food plus prepaid food card issued by HDFC bank bearing no.4213280201799544. Document no.2 is email letter of complainant addressed to the team CITI bank dated 19-4-2012 stating that, Mr.Vivek response is totally a one sided affair wherein the approach adopted by Citibank is full of negligence and in sincere towards the entire episode and with the Indian legal system still quite inadequate of times and that too in fact in case of IT cyber laws, CITI bank is quite enjoying the benefit with the least of information security systems in place and hence customers are paying the price for the same. CITI bank must learn and adopt something from brand services like that of American Express, so he is not liable to pay any amount whatsoever in nature against the fraud transaction reported to Citibank, he has no other option but to go the legal route and follow with concerned law enforcement agencies of the Republic of India, and the said letter contained a letter of Executive of the OP addressed to the complainant stating that as per their records, the transaction was authenticated using the internet personal identification number and all IPIN based transactions are considered valid so they are unable to provide a provisional credit for the said transaction. Document no.3 is email letter of complainant addressed to Team Citibank dated 11-4-2012 stating that, he has tried all possible norms to inform and confirm that the concerned transaction is fraud even though the nature of transaction is online and in Russian currency, this is a gross failure on the approach adopted by Citibank, he has notified the case to cyber crime police cell and he owes no liability whatsoever in nature and another email letter of the complainant is found in the said document stating that, CITI bank informed him that 95,340.00 RUB Russians currency was spent on his credit card on 15-10-2011 via online transaction in Russia at some unknown M.Video Internet – Mag for house hold appliances and he immediately contacted CITI bank through online and any outstanding amount related to the fraud transaction stands automatically nullified and he need not to pay any liability against the same, so he will have no option but to heading towards a legal route. Document no.4 is email letter of Vice president of the OP addressed to the complainant dated 7-4-2012 stating that, they acknowledged receipt of email of complainant and confirmed that matter is being reviewed and they shall revert to him by 10-4-2012. Document no.5 is email letter of India Service of OP addressed to the complainant dated 19-10-2011 stating that, they regret their inability to cancel the authorization of the transaction once the same has been approved and requested the complainant to wait for the transaction to get billed to his card account and revert once the same has been billed and also requested to lodge the police complaint for the disputed charge and on the back page of the said document one email letter of complainant addressed to the India Service of OP dated 19-10-2011 is found wherein it is stated that he is trying to help team CITI bank to block the concerned transaction, today there is a news that got published in Times of India about fraud transaction in Russia, Thailand, Hong Kong, Sri Lanka, Malaysia and Singapore and his case is also the same, so he is not going to pay any money for this fraud transaction, and that letter is annexed with email letter of India Service of OP addressed to the complainant dated 18-10-2011 requesting to revert once the same is debited to the card account and they can proceed with any investigation only after the transaction gets debited and they regret their inability to cancel the authorization without credit voucher and on the back page of letter we found email of complainant dated 17-10-2011 addressed to the India Service of OP stating that he has already communicated with all sufficient available and feasible means about the proactively after getting notified of the same and rest of the accountability and responsibility lies with team Citibank and he reiterated that he will not pay any amount against this fraud transaction. Document no.6 is statement of card of the complainant for a period from 20-2-2012 to 19-3-2012 showing the total amount due to the bank was Rs.2,02,300.59. Document no.7 is copy of complaint filed by the complainant to DCP, EOW Cyber Crime Cell, Pune dated 24-10-2011 praying to do investigation as he received a notification from Citibank that 95,340.00 RUB was spent on his credit card with an authorization code 203963 and that transaction was done online by some unknown illegal method and the said transaction was not done by him, so block the transaction and do the investigation and the said document was annexed with the copy of acknowledgment given by Pune police for having received the complaint from complainant. The last document of the complainant’s list is the letter given by the complainant dated 24-10-2011 to Team Citibank, Chennai stating that, never ever he has spent anything in any currency except Indian rupee on Citibank credit card and suddenly he is getting notification that 95,340.00 RUB was spent through his credit card on 15-10-2011 in Russia for house hold appliances by some unknown M.Video Internet – MAG and this transaction is non sense and not at all related to him and the credit card is in his possession throughout the last four years and he has never been to Russia at all and this transaction was wrongly associated to his account and so he should discard this as part of wrong notification, please investigate this on immediate basis and confirm at the earliest and the complainant has produced copy of pass port taken in his name dated 10-9-2002 wherein we do not find the date of 15-10-2011 for having travelled to Russia by complainant.

9. Let us have a cursory glance at the material evidence of the OP. One Biju Joe has stated in his affidavit filed on behalf of the OP that, the present complaint has to be dismissed for non joinder of necessary parties. The complainant has not made GAZPROMBANK Moscow as a party. The complainant is holding a credit card bearing no.5546 3706 0246 2011 issued on 13-9-2007, the outstanding amount as on Dec.2011 is Rs.1,63,540=00. That on 15-10-2011 an online transaction for a sum of Rs.1,62,989.33 (95,340 Russian Ruble) was carried out at Merchant Establishment, M.Video Internet-Magaz Moskva RU. On 15-10-2011 at 2.09 PM the details of the said transaction was sent through a transaction alert email on the same date to the complainant’s email ID registered with the OP. On 16-10-2011 the complainant through phone banking facility had disputed the online transaction and on the basis of the above dispute and at the request of the complainant, the OP has immediately disabled the said credit card and IPIN to avoid any misuse of the card. The OP initiated investigation on the charge disputed. The investigation revealed that transaction carried out under the secured mode and transaction was authenticated. The OP on 29-10-2011 has paid to the acquiring bank. The issuance and usage of credit cards are governed by the terms and conditions of the card member agreement which are binding on all credit card holders, including the complainant. The said disputed transaction has been done by using IPIN which is within the exclusive knowledge of the card holder i.e. the complainant. The said transaction was carried out only due to negligence of the complainant. Hence the OP is not liable for the same and the complainant should not be allowed to take advantage of his own negligence. The OP has informed the complainant of the above position vide various communication. The OP has acted prudently and diligently and has strictly adhered to and followed the banking norms and various guidelines issued by the RBI from time to time. The present matter required detailed evidence and trial to adjudicate upon the authenticity of the disputed transaction and same cannot be decided in summary proceedings. The complainant has not come to forum with clean hands and there is no deficiency of service on the part of the OP, so the complaint be dismissed.

10. Annexure-A of the OP is statement of account of the complainant credit card transaction issued by the OP for a period from 20-8-2011 to 19-9-2011 showing the total amount due was Rs.4,473.49. The OP has produced four statement of account of the complainant wherein we have found that on 15-10-2011 an amount of Rs.1,62,989.33 was transacted by using credit card in Russian ruble i.e. 95,340.00 and total amount due was Rs.1,63,540.83 and as on 19-1-2012 an amount due was in a sum of Rs.1,86,306.48 to OP bank. Annexure-B is email letter dated 15-10-2011 sent to the complainant by OP informing that 95,340.00 RBU was spent on his credit card on 15-10-2011 at 2.09 PM. Annexure-C is copy of screen shot of the transaction. Annexure-D is the copy of agreement clause 20 and in that clause 20.4 is relevant which reads as under: “Transaction where the card is not physically required, which are duly authorized by the card member by use of the card member’s telephone personal identification number (TPIN) or internet personal identification number (IPIN) or through any alternative authentication methods as prescribed by the bank, such transaction are deemed to be valid transactions”. Annexure-E is letter of RBI dated 18-2-2009 issued to the Chairman and Managing Director/Chief Executive Officers/ All Scheduled Commercial banks including RRBs/ Urban Co-operative banks/ State cooperative banks/ District Central Cooperative banks for giving additional authentication and online alerts to the card holders. Annexure-F is letter of Pune Police addressed to the OP dated 3-11-2011 calling information in respect of complaint of the complainant filed before them with regard to the alleged transaction. Annexure-G is reply given by the OP to Pune police furnishing the information.

11. Having considered the totality of oral and documentary evidence of both parties, it is made unambiguously clear that, the complainant was issued the credit card by OP bank bearing no.5546370602462001 in the month of December 2007 and he has been using the said card since 2007. On 15-10-2011 the complainant has received a notification from the OP that 95,340.00 RUB was spent on his credit card at M.Video Internet-Mag, immediately the complainant has sent his protest to the OP bank by phone and also in writing disputing the said transaction and further stated that he is not liable to pay the said amount as transaction done in Russia is fraud transaction. The OP has made detailed investigation and informed the complainant that as per their records the transaction in dispute was authenticated using the IPIN and IPIN transactions are considered valid. The complainant has filed the complaint before the DCP, Pune Policy, Cyber Crime Cell. The OP bank has furnished all information to Pune police. The complainant has taken the credit card after agreeing to terms and conditions of the OP bank. As per clause 20.4 of the OP bank, it is made manifest that, the transactions where the card is not physically required which are duly authorized by card member by use of the card member’s telephone personal identification number or internet personal identification number or through any alternative authentication methods as prescribed by the bank such transactions are deemed to be valid transactions. It is no doubt true from the copy of pass port produced by the complainant that he did not visit the Russia as on 15-10-2011. Merely because, the  copy of pass port does not show alleged date i.e. 15-10-2011 it is not justifiable to hold on presumption and assumption that the complainant was very much in India as on 15-10-2011 and not in Russia. Looking at the case of complainant on the back ground of material evidence of both parties and relevant terms and conditions of the credit card issued by the OP, it is vivid and clear that, the OP has acted promptly and given suitable reply to the correspondences of the complainant and after due investigation of the records the OP told the complainant that the alleged transaction dated 15-10-2011 in Russia in RUB is an authenticated transaction as the transaction was made by using IPIN. In fact, the OP has acted strictly in accordance with the terms and conditions of the credit card and also guidelines of the RBI, we do not find any negligence or deficiency of service as such on the part of the OP. So we are of the opinion that, the oral and documentary evidence of the OP is more believable trustworthy and acted upon than the material evidence of the complainant. So under the circumstance, we are of the view that, the complainant who comes to the forum seeking relief has miserably failed to prove with convincing material evidence that, the OP is negligent and there is deficiency of service on the part of the OP in not settling the fraudulent transaction as stated in the complaint and accordingly, we answer this point in a negative.

12. In view of our negative finding on the point no.1, the complainant is not entitled to any relief as prayed in the complaint. So, we answer this point in a negative. In the result, for the foregoing reasons, we proceed to pass the following order.

ORDER

          The complaint of the complainant is hereby dismissed. No cost.

          Supply free copy of this order to both parties.  

          (Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open forum on this, the 3^rd day of October 2013).

MEMBER                                 PRESIDENT